Western armed interventions: legitimate and efficient?

With conflict raging on for years, none of the Western interventions in Afghanistan, Syria, Libya and Mali may be called a success to date. This raises some serious questions about their legitimacy and efficacy that will be addressed in this episode of the Clingendael Spectator series on Western interventions. Given their limited impact and due to geopolitical shifts, will it become more difficult for Western nations to engage in such armed interventions? Is the UN still relevant in addressing conflicts with major humanitarian crises? What are the consequences of intervention without a UN mandate?

In the conflicts of Afghanistan, Syria, Libya and Mali, the West is involved either directly or indirectly, by means of UN and NATO missions. Western countries intervened in these conflicts mainly because of core interests—the fight against international terrorism—or for urgent humanitarian reasons—to protect a civilian population against massive violations of international law and human rights.

The cornerstone of the current international legal order is the prohibition of the use of force contained in Article 2, paragraph 4 of the UN Charter. In brief, it bans the use of armed force except when authorized by the UN Security Council or when necessary in self-defence.

It could be argued that the UN system of mediating and moderating the raw interplay of power between states through the Security Council (and giving the Second World War victors a controlling veto) has been fairly successful “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”1

Major wars between states have become relatively scarce with a few exceptions, such as the 8-year long war between Iraq and Iran (1980-88). When the Iraqi leader Saddam Hussein invaded Kuwait, this blatant act of aggression was successfully addressed in the US led operation “Desert Storm” (1990-91), which was authorised by the Security Council.

New security threatsThe Security Council’s record in dealing with new security threats (intra-state violence, massive human rights violations, WMD threats and terrorism) has been far less impressive. Its authority and credibility is gradually undermined by failures to act due to persistent uses of veto power and accusations of double standards.

It has been almost impossible to reform the Security Council (including its composition) and adapt this key conflict management instrument to the modern security threats. This means that we must face the underlying political and moral dilemma what should be done if the Security Council is unable or unwilling to maintain international peace and security.

In its ground-breaking report on The Responsibility to Protect of 2001, the International Commission on Intervention and State Sovereignty asked where lies the most harm: “In the damage to international order if the Security Council is bypassed or in the damage to that order if human beings are slaughtered while the Security Council stands by.”2

Can intervention be non-legal but legitimate?It proved possible to obtain a Security Council mandate for most Western interventions, particularly in the first two decades after the collapse of the Soviet Union. NATO’s bombing campaign in Kosovo (1999) was, however, an exception. Western capitals widely believed at the time that if a resolution asking for a Security Council mandate for this operation had been tabled, Russia would have cast its veto.

Though not legal under international law, it has been argued that the Kosovo war was nonetheless legitimate, or morally justified: If the Security Council fails to take responsibility due to the use (or threat of) a veto, there may be compelling political and moral reasons for nations to take their responsibility and act in exceptional circumstances when confronted with mass atrocities.

The case for legitimacy of NATO’s bombing campaign in Kosovo was strengthened by its “success”

This reasoning was widely followed in Western capitals at the time.3 The case for legitimacy was strengthened by the “success” of the bombing campaign. Moreover, its moral justification was further vindicated because it proved possible to set up a military stabilisation mission (KFOR) and interim civilian administration (UNMIK) under UN mandate in the aftermath.

However, these arguments were not accepted by others in the international community, notably Russia and China. These two other non-Western permanent members of the Security Council are wary that Western humanitarian intervention could undermine the principles of state sovereignty and non-interference in internal affairs.

Since the Kosovo war, suspicion about the West’s intentions (and double standards) has deepened, also among many non-aligned nations fearing in particular that the ultimate goal of Western intervention is regime-change. The subsequent Libya crisis caused a breakdown of trust and paralysed the Security Council over the issue of humanitarian intervention.

Can intervention be legal but non-legitimate?The NATO-led intervention in Libya (2010-11) was mandated by the Security Council. Its purpose was humanitarian by preventing the Libyan leader Colonel Gaddafi from terrorising his people, but the operation resulted (whether intended or not) in his downfall and regime change.

Both Russia and China protested that NATO had exceeded its mandate. The disastrous aftermath was a failed state succumbing to civil war and multiple foreign interferences. The UN was left helpless in its efforts to restore peace and protect the civilian population. In this case Western intervention may have been legal, but was widely considered illegitimate given the disastrous consequences.

A Security Council deadlock on Syria meant that stronger states with interests at stake all intervened directly or indirectly, using force or supporting proxy groups

What happened during the Libya crisis reverberated in the next big crisis in Syria. The Security Council became deadlocked from the beginning (2011) until today, though with a few exceptions.4 Inevitably this meant that stronger states with core interests at stake (Russia, US, Turkey, Israel, Gulf States) have all intervened directly or indirectly by using force or supporting armed groups in the proxy civil war.

Russia based its intervention on the legal grounds of being invited by the President of Syria. However, one can question the legitimacy of backing a regime widely considered to have committed war crimes against its own population.5 Conversely, the US led coalition against ISIS had no explicit legal basis, but few will regret that ISIS was defeated in Syria and Iraq – even though there are lingering doubts about its efficacy (is ISIS really defeated?).

The general prohibition on the use of force is almost casually bypassed by all and civilians are paying the intolerable price of getting slaughtered

Turkey is trying to justify its unauthorised military incursions along its long border with Syria on self-defence or humanitarian grounds. Israel is using its own conflict prevention doctrine to justify frequent aerial bombing raids in Syria, targeting Hezbollah and Iranian operations. In Syria the general prohibition on the use of force is almost casually bypassed by all and civilians are paying the intolerable price of getting slaughtered and uprooted.

Confusion in Western capitals about reasons for going to war was also in painful display when in April 2018 the US, UK and France responded militarily to an alleged poison gas attack on Douma, Syria. The aerial bombing mission on suspected chemical weapons facilities took place without Security Council authorisation, which would have been almost certainly denied by Russia.

While in Washington President Trump invoked “national security interests”, London sought justification on grounds of “humanitarian intervention”, and Paris justified its involvement as “defence of international law and the prohibition of the use of chemical weapons.” All this has undermined the international order as envisioned by the founders of the UN system.

In the Netherlands the government expressed understanding (“begrip”) for the military response of its allies to the poison gas attack on Douma, distancing itself somewhat from the support expressed in statements by NATO and—albeit in vaguer terms—the EU.6

It also decided to seek advice and establish an Expert Group, chaired by Professor Cyrille Fijnaut, on Political Support for Interstate Use of Force and Humanitarian Intervention, of which I was a member. In December 2019 the Expert Group, henceforth referred to as the Fijnaut Commission, published its report and some of its main conclusions are pertinent to the issues raised above.7

Findings of the Fijnaut CommissionIt will not come as a surprise that the Expert Group took a grim view of the geopolitical context, warning that Western initiatives for mandated interventions are more likely to be blocked by a re-assertive Russia or China claiming superpower status. It also warned that there are strong reasons for exercising caution before supporting a military operation without basis in international law.

Ignoring or by-passing the prohibition of the use of force risks eroding the international legal order and may encourage a culture of impunity, in particular among (strong) states intending to use force in similar circumstances in the future. I fear this is already happening in Syria and elsewhere (for example, Russia’s annexation of Crimea).

Moreover, there are also political risks that have to be carefully weighed in supporting the use of force, whether authorised by the Security Council or not. The Fijnaut Commission observed that “doing something” or engaging in a military operation could be morally right initially.

Yet, supporting such a course of action can also have unintended consequences and lead to failure when international repercussions, the conflict dynamics, the balance between political ends and military means and the efficacy of the military operation are ignored or underestimated. This is why the Fijnaut Commission stressed that a reasonable expectation of success should be taken into account when supporting a military action politically.8

To avoid establishing legal precedents, it would be important to recognise the lack of basis in international law rather than construe a legal justification

In this key conclusion the Fijnaut Commission did, however, recognise that if the Security Council is unable or unwilling to take required steps to maintain international peace and security, responsible governments must face the political and moral consequences and may even be compelled to resort to action deemed unlawful by themselves.

In order to avoid establishing legal precedents, it would be important to recognise the lack of basis in international law rather than construe a legal justification, as the Dutch government tried during the second Gulf War (2003).9The Netherlands and its allies are also advised to enter into consultations and align their positions within NATO and the EU to avoid the differences that arose in relation to reactions to the military strikes in 2018.10

The Fijnaut Commission observed that it does not seem advisable at present for the Dutch government to strive for another legal exception to the general prohibition with a view of allowing the use of force by states for ostensibly humanitarian purposes.11 Instead, the persistent inability of the Security Council to actually perform as the world’s main body for conflict management and resolution was identified as the primary source of concern.

There is little reason for optimism that in the foreseeable future initiatives to reform the Security Council and in particular, to restrain its permanent members from using the veto in case of recognised mass atrocities will be successful.

In this regard, the expert group discussed to what extent the subsidiary responsibilities of the UN General assembly and the Secretary-General in the area of peace and security, as laid down in the UN Charter, could be used more proactively to overcome Security Council inaction.12

The Fijnaut Commission also encourages the use of Responsibility to Act (R2P) principles, which were endorsed at the 2005 World Summit Outcome to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. The five principles to ascertain if humanitarian intervention is needed and justified (just cause, right intention, last resort, proportional means and reasonable prospects)13offer the UN Secretary-General an accepted framework to present a report on a given urgent crisis situation.

The Secretary-General would be acting within his prerogative under article 99 of the UN Charter to bring any matter to the attention of the Security Council, which in his/her opinion may threaten the maintenance of international peace and security. If the Security Council proves unable to agree on a response, the UN General Assembly may decide to pro-actively use its subsidiary responsibilities14 by deciding to consider the Secretary-General’s report.

If the Security Council remains blocked despite the General Assembly’s urge to reconsider, the case for those willing to act without authorisation is strengthened

By a two-thirds majority, the General Assembly can adopt a resolution approving the report’s main findings and conclusions, and urge the Security Council to reconsider the report and take appropriate action. In this way the UN’s main institutions invested with responsibility for crisis management may reinforce each other and produce better outcomes. If the Security Council remains blocked, the case for those willing to take responsibility and act nonetheless without authorisation is strengthened.15

ConclusionArmed interventions, even if they have a basis in international law, can lead to unintended consequences and result in failure, thereby ultimately losing their legitimacy. On the other hand, armed interventions can be non-legal and still be based on political and moral justifications, which may be vindicated if the operation proves to be largely successful.

While the question of its legality can be answered before the intervention, its ultimate legitimacy is only answered afterwards and depends largely on whether the five R2P principles, in particular reasonable prospects of success, have been met. In practice, these key requirements are often underestimated, leading to failed or endlessly prolonged missions.

In writing this article I was reminded of Immanuel Kant’s maxim of the crooked timber of humanity.16 Both international law and the bodies that are supposed to enforce its implementation are imperfect. But this only means that both need to be constantly attended to, if we wish to live in an international community based on UN Charter rules.

3. However, it is questionable if Russia was really tested in the Security Council to oppose intervention in Kosovo.

4. A notable exception was the Security Council authorised OPCW-UN Joint Mission in Syria (2013-14) to oversee the elimination of the Syrian chemical weapons program. The Mission was largely successful in removing and destroying reported stockpiles of chemical weapons, but did not halt the continued use of chemical weapons in the civil war.

5. Indeed, a generally accepted third exception to the general prohibition is the use of force upon invitation of the host government. For example, NATO operations in the Former Yugoslav Republic of Macedonia (now North Macedonia) were conducted on this basis.

6. Compare the North Atlantic Council’s expression of “full support for this action” with the EU High representative’s statement that the “EU is supportive of all efforts aimed at the prevention of the use of chemical weapons.”

7. Humanitarian Intervention and Political Support for Interstate Use of Force. Report of the Expert Group Established by the Foreign Minister of the Netherlands, The Hague, December 2019. For an analysis of Dutch and Western reactions to the military response to the poison gas attack on Douma, see annex D.

8. “Having taken these legal and political risks and consequences into account, the government may nonetheless find that there are compelling reasons to offer political support to an intervention, even though they regard it as unlawful.” Quoted from the Report Fijnaut Commission, 2019, para 48.

9. The Dutch government argued that existing Security Council resolutions already provided a legal framework and justification for the US led military intervention and that no “second resolution” explicitly authorising the use of force was therefore needed. This position was rejected by the Commissie Davids and the government accepted its conclusion that there had been no basis in international law for Dutch support in the Second Gulf war. See also Report Fijnaut Commission, Annex D, p 34-37.

10. “Rather than the unavailability of a legal basis in international law, the failure to prevent and inaction of the Security Council in the face of mass atrocities should be seen as the primary source of concern.” Quoted from the Report Fijnaut Commission, 2019, para 22.

11. A large majority of the expert group supported this view. See Report Fijnaut Commission, 2019, para 35.